Court of Appeals for the Sixth Circuit Cases

Kevin McGee v. Thomas Armstrong

941 F.3d 859 • 2019-10-29

Citation941 F.3d 859

Date Filed2019-10-29

Docket18-3886

Cited73 times

StatusPublished

Full Opinion (html_with_citations)

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0270p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

KEVIN V. MCGEE, ┐
Plaintiff-Appellant, │
│
> No. 18-3886
v. │
│
│
THOMAS ARMSTRONG; LISA KAMLOWSKY; SUMMIT │
COUNTY BOARD OF DEVELOPMENTAL DISABILITIES; │
JOHN DOES 1–3, │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:11-cv-02751—Sara E. Lioi, District Judge.

Decided and Filed: October 29, 2019

Before: COLE, Chief Judge; MERRITT and LARSEN, Circuit Judges
_________________

COUNSEL

ON BRIEF: Michael J. McGee, HARRINGTON, HOPPE & MITCHELL LTD, Warren, Ohio,
for Appellant. Stephen P. Postalakis, David S. Kessler, HAYNES KESSLER MYERS
& POSTALAKIS, INCORPORATED, Worthington, Ohio, for Appellees.
No. 18-3886 McGee v. Armstrong, et al. Page 2

_________________

OPINION
_________________

MERRITT, Circuit Judge. This appeal arises from Plaintiff Kevin McGee’s termination
from the Summit County Board of Developmental Disabilities, an institution of local
government in Ohio. In this appeal, Plaintiff argues that the District Court erred in granting
Defendants’ motion to compel arbitration; denying Plaintiff’s motion to vacate the arbitration
award; and granting Defendants’ motion for summary judgment regarding Plaintiff’s breach of
contract claims. For the reasons below, we AFFIRM.

I.
Plaintiff is a terminated former management employee of Defendant Summit County
Board of Developmental Disabilities (the Board) as Director of Marketing, Public Relations, and
Specialty Businesses. Plaintiff is also a Second Lieutenant in the Ohio Army National Guard, in
which he has been an active member since 2008.

Defendant Thomas Armstrong is the Board’s Superintendent. He hired Plaintiff and was
his immediate supervisor. Defendant Lisa Kamlowsky is the Board’s Assistant Superintendent
and Chief Legal Counsel. Armstrong and Kamlowsky are both management-level employees.

Plaintiff worked under renewable one-year employment agreements from his hiring in
2002 until his termination in 2012. The employment agreement contains a broad arbitration
provision in the “Contract Termination-Employee Discipline” section, which states:

During the term of the Contract, the Employee may be removed, suspended or
demoted for cause pursuant to ORC 5126.23 . . .
In consideration for the compensation and other benefits set forth herein, and after
specifically considering his WAIVER OF RIGHTS, the Employee agrees that the
parties shall not use the statutory procedures set forth in ORC 5126.23 for the
resolution of any matter regarding the removal, suspension or demotion of the
Employee. Any dispute, claim or cause of action arising out of such removal,
suspension or demotion shall be submitted to binding arbitration under the
then existing rules of the American Arbitration Association.
No. 18-3886 McGee v. Armstrong, et al. Page 3

***

The question of arbitrability must be raised by either party before the arbitrator
hears the merits of the dispute. If a question of arbitrability is raised, the
arbitrator may either rule on this issue or reserve ruling and hear the merits of the
dispute before issuing a ruling on this question.
The decision of the arbitrator shall be final and binding upon the Board and the
Employee. The parties expressly waive the procedures for appeal set forth in
Ohio Revised Code Chapter 5126 in order to engage in this expedited, binding
arbitration procedure.

(Emphasis added).1

When Plaintiff joined the Ohio Army National Guard in 2008, his contract provided for
“military leave in accordance with Board Policy.” The Board policy regarding military leave,
found in Plaintiff’s employee handbook,2 provided:

MILITARY LEAVE

Non-bargaining unit employees who are members of the Ohio National Guard,
Ohio Defense Corps, the Ohio Naval Militia, or other armed forces reserves are
entitled to a military leave of absence from their duties without loss of pay for
such time as they are in the military service, on field training, or active duty, for a
period not to exceed thirty-one (31) days in any calendar year.

Employees must apply for military leave in advance by completing an
Application for Leave form and submitting it, along with a copy of their orders,
for approval.
The maximum number of hours for which the Agency must compensate an
employee on military leave during any calendar year is one hundred and seventy-
six (176) hours.

Plaintiff asked Armstrong for up to ten weeks of military leave. After consulting the
Board Personnel Committee, Armstrong declined Plaintiff’s request but decided that, for service

1Ohio Rev. Code § 5126.23(H) allows a county board and an employee “to submit issues regarding the
employee’s removal, suspension, or demotion to binding arbitration.”
2Plaintiff acknowledged receipt of this handbook.
No. 18-3886 McGee v. Armstrong, et al. Page 4

beyond 176 hours, Plaintiff would receive differential pay.3 Plaintiff’s 2008–09 contract4
reflected this change:

5. Military Leave – The Employee shall be entitled to thirty-one (31) days of
military leave. In the event the Employee is called or ordered to the
uniformed services for longer than one month, Employee is entitled,
during the period designated in the order, to a leave of absence and to be
paid, during each monthly pay period of that leave of absence, the
difference between the Employee’s gross monthly salary and the sum of
the Employee’s gross uniformed pay and allowances received that month.

In 2008, Ruth Pemberton, the Board’s Payroll Supervisor, noticed that Plaintiff was
going to exceed 176 hours of military leave at full pay for the calendar year. Pemberton notified
Plaintiff of the issue, but Plaintiff maintained he was entitled to 31 days of military leave, not
176 hours. The Board mistakenly continued to pay Plaintiff full military leave after his
176 hours instead of differential pay.5

On August 26, 2011, Laurie Williams, Human Resources Coordinator, sent a proposed
2011–12 contract6 to Plaintiff, asking him to sign it, but Plaintiff never responded. This contract
used the same language as Plaintiff’s earlier contracts and provided for “thirty-one (31) days of
military leave[,]” followed by differential pay, if leave extended beyond that period.

In September 2011, Pemberton again notified Plaintiff that he was going to exceed his
176 hours, and Plaintiff again insisted he was due 31 days of military leave and not 176 hours.
Armstrong ultimately decided to pay Plaintiff full military leave beyond 176 hours but sought to
clarify the issue in Plaintiff’s 2011–12 contract. That same month, Kamlowsky learned that
Plaintiff was overpaid for his military leave in 2008.

3Forexample, in 2011, Plaintiff’s bi-weekly pay from the Board was $3,801.60. His military pay and
allowances for 2 weeks was $2,281.07. The contract entitled him to the difference between the two, as shown
below.
4Plaintiff’s 2009–10 and 2010–11 contracts contained this same language.
5Before Pemberton could address the problem further, she had a heart attack and was absent from the
office.
6Plaintiff’s contracts ran from October to October of each year.
No. 18-3886 McGee v. Armstrong, et al. Page 5

In response to the issue, Williams sent Plaintiff a second, revised 2011–12 contract. This
second contract’s revised military leave language stated: “The Employee shall be entitled to
military leave in accordance with Ohio law.”7 Plaintiff met with Williams but refused to sign the
second contract.

Although Plaintiff did not sign either the original or revised 2011–12 contract, Plaintiff
remained employed with the Board. Plaintiff filed his first complaint on December 20, 2011.
Plaintiff went on military leave from January 8 through March 28, 2012.

The Board paid Plaintiff full military leave starting January 9, 2012, until his 176 hours
expired February 8, 2012.8 The Board paid Plaintiff differential pay from February 9 to March
28, 2012. Plaintiff’s differential pay was $152.05 per day, the difference between 2 weeks’ pay
of $3,801.60 from the Board and 2 weeks’ military pay and allowances of $2,281.07.

On April 2, 2012, shortly after returning from military leave, the Board delivered to
Plaintiff a pre-disciplinary hearing notice. The Board notified Plaintiff of his termination on
April 21, 2012. Plaintiff filed his second amended complaint (complaint) on May 17, 2012,
alleging wrongful termination of employment, various breaches of the employment contract, and
discrimination and retaliation based on his military status and service.

On July 3, 2014, the District Court granted Defendants’ motion to compel arbitration
with respect to all of Plaintiff’s causes of action in Plaintiff’s complaint, excluding two breach of
contract claims. The District Court stayed the two contract claims pending arbitration.

On March 9, 2016, the arbitrator determined that all of the claims the District Court
identified as possibly subject to arbitration were arbitrable, and on January 25, 2017, the
arbitrator granted summary judgment in favor of Defendants as to all claims.

7Ohio Rev. Code § 5923.05(A) entitles public employees to military leave “for periods up to one month”
and defines “month” as “twenty-two eight-hour work days or one hundred seventy-six hours[.]”
8The Board paid Plaintiff according to his August and September 2011 military leave and earnings
statements. Plaintiff did not provide any 2012 earning statements until requested to do so for his deposition on May
15, 2012.
No. 18-3886 McGee v. Armstrong, et al. Page 6

On February 21, 2017, Plaintiff moved the District Court to re-open the case and appeal
the arbitrator’s decision. The District Court denied Plaintiff’s request to appeal the arbitrator’s
decision but granted his request to re-open the case to address the breach of contract claims.

On August 16, 2018, the District Court granted Defendants’ motion for summary
judgment regarding Plaintiff’s breach of contract claims. Plaintiff filed a timely notice of appeal
on September 14, 2018.

II.

Issues on appeal are whether the district court erred in (1) granting Defendants’ motion to
compel arbitration; (2) denying Plaintiff’s motion to vacate the arbitrator’s order granting
summary judgment to Defendants; and (3) granting Defendants’ motion for summary judgment
on Plaintiff’s breach of contract claims. We address each in turn.

Plaintiff argues that the district court erred in granting the Defendants’ motion to compel
arbitration because certain claims in his complaint are not arbitrable under the contract.
We review a District Court’s decision to compel arbitration, including the arbitrability of a
dispute, de novo. Huffman v. Hilltop Companies, LLC,

747 F.3d 391, 394

 (6th Cir. 2014)
(internal quotation marks and citations omitted).

       The Federal Arbitration Act (FAA),

9 U.S.C. § 1

 et seq., generally applies to employment
contracts with arbitration provisions. Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 109

(2001). The FAA allows “[a] party aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for arbitration” to seek an order compelling
arbitration and permits a stay of other proceedings if claims are referred to arbitration. §§ 3–4.
When considering a motion to stay proceedings and compel arbitration, a court has four tasks:

       [F]irst, it must determine whether the parties agreed to arbitrate; second, it must
       determine the scope of that agreement; third, if federal statutory claims are
       asserted, it must consider whether Congress intended those claims to be
       nonarbitrable; and fourth, if the court concludes that some, but not all, of the
       claims in the action are subject to arbitration, it must determine whether to stay
       the remainder of the proceedings pending arbitration.

Stout v. J.D. Byrider,

228 F.3d 709, 714

 (6th Cir. 2000) (internal citations omitted).
 No. 18-3886                          McGee v. Armstrong, et al.                            Page 7


       The parties do not dispute the existence of the arbitration clause in the employment
contract. Plaintiff contests the scope of the agreement, the second determination required by
Stout. The District Court found that all but Plaintiff’s sixth cause of action and a portion of the
twelfth cause of action fall within the scope of the arbitration clause. On appeal, Plaintiff argues
that the first cause of action, fifth cause of action, fourteenth cause of action, and

42 U.S.C. § 1983

 claims are not subject to arbitration.

       Before deciding the scope of the agreement, we must decide who determines what
disputes are arbitrable. The question of arbitrability is one for the courts unless the parties
“clearly and unmistakably provide otherwise.” Howsam v. Dean Witter Reynolds, Inc.,

537 U.S. 79, 83

(2002) (internal quotation marks and citations omitted). The employment contract
provides two provisions relevant here. The first provision states:

Any dispute, claim or cause of action arising out of such removal, suspension or
demotion shall be submitted to binding arbitration under the then existing rules of
the American Arbitration Association.

The Employment Arbitration Rules and Mediation Procedures of the American
Arbitration Association provide:

6. Jurisdiction
a. The arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence,
scope or validity of the arbitration agreement.
b. The arbitrator shall have the power to determine the existence or
validity of a contract of which an arbitration clause forms a part. Such
an arbitration clause shall be treated as an agreement independent of
the other terms of the contract. A decision by the arbitrator that a
contract is null and void shall not for that reason alone render invalid
the arbitration clause.
c. A party must object to the jurisdiction of the arbitrator or to the
arbitrability of a claim or counterclaim no later than the filing of the
answering statement to the claim or counterclaim that gives rise to the
objection. The arbitrator may rule on such objections as a preliminary
matter or as a part of the final award.

AAA Employment Arbitration Rules and Mediation Procedures, § 6 (Eff. Nov. 1, 2009). The
second relevant provision provides:
No. 18-3886 McGee v. Armstrong, et al. Page 8

The contract thus shows that the parties “clearly and unmistakably” agreed that the
arbitrator would decide questions of arbitrability. See Howsam,

537 U.S. at 83

.

        This circuit previously held that when parties expressly delegate arbitrability to the
arbitrator, such a “delegation applies only to claims that are at least arguably covered by the
agreement.” See Turi v. Main Street Adoption Services, LLP,

633 F.3d 496, 511

 (6th Cir. 2011).
Under this approach, an arbitrator does not have the authority to decide the arbitrability of claims
“clearly outside the scope of the arbitration clause.”

Id. at 507

. But the Supreme Court recently
rejected that approach, specifically pointing to our decision in Turi as one whose holding it
disapproved. See Henry Schein, Inc. v. Archer & White Sales, Inc.,

139 S. Ct. 524

, 528–29
(2019). The Supreme Court held instead that once the parties make such an agreement, “courts
must respect the parties’ decision as embodied in the contract” and refer all arbitrability
questions to arbitration.

Id. at 531

. And that is true even when the arguments for a particular
claim’s arbitrability are “wholly groundless.”

Id. at 529

.

        Following its abrogation in Henry Schein, Turi is no longer good law; we are bound,
instead, to follow Henry Schein. Applying Henry Schein here, because the parties “delegate[d]
the threshold arbitrability question to an arbitrator,” the District Court did not err in referring the
contested claims to arbitration.9

Id.


        Next, we address whether the District Court erred in denying Plaintiff’s motion to vacate
the arbitrator’s order granting summary judgment to Defendants. “When reviewing a district
court’s decision either vacating or confirming an arbitrator’s award under the FAA, we apply the
clear-error standard to the court’s finding of fact, but we review questions of law de novo.”
Samaan v. Gen. Dynamics Land Sys., Inc.,

835 F.3d 593, 599

 (6th Cir. 2016) (internal citations
omitted). Review of an arbitration award “is one of the narrowest standards of judicial review in


         9We leave for another day whether and to what extent Henry Schein affects the second and third tasks
courts are required to perform under Stout.
 No. 18-3886                               McGee v. Armstrong, et al.                                        Page 9


all of American Jurisprudence.” Way Bakery v. Truck Drivers Local No. 164,

363 F.3d 590, 593

(6th Cir. 2004) (internal quotation marks and citation omitted). Plaintiff relies on Ohio law, 10
and Defendants do not contest its application.

Ohio Rev. Code § 2711.10 provides that an arbitration award may be vacated under four
circumstances:

(A) The award was procured by corruption, fraud, or undue means.
(B) There was evident partiality or corruption on the part of the arbitrators, or any
of them.
(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing,
upon sufficient cause shown, or in refusing to hear evidence pertinent and
material to the controversy; or of any other misbehavior by which the rights of
any party have been prejudiced.
(D) The arbitrators exceeded their powers, or so imperfectly executed them that a
mutual, final, and definitive award upon the subject matter submitted was not
made.

Plaintiff relies on subsection (D) of the above statute. Specifically, Plaintiff argues that
“[t]he arbitrator did not have the power to enter a decision on [Defendants’] motion for summary
judgment.”11 As noted above, the parties agreed that the Employment Arbitration Rules and
Mediation Procedures of the American Arbitration Association govern arbitration.
The “Dispositive Motions” section of the rules state: “[t]he arbitrator may allow the filing of a
dispositive motion if the arbitrator determines that the moving party has shown substantial cause
that the motion is likely to succeed and dispose of or narrow the issues in the case.”
AAA Employment Arbitration Rules and Mediation Procedures, § 27 (Eff. Nov. 1, 2009).
As such, the arbitrators did not exceed their powers by entering a decision on Defendants’
motion for summary judgment. The District Court appropriately denied Plaintiff’s motion to
vacate the arbitrator’s award.

10We note that Ohio law and

9 U.S.C. § 10

 provide nearly identical grounds for vacating an arbitration
award.
         11Plaintiff  also argues that the arbitrator’s decision failed to draw its essence from the argument, which is
grounds for vacating an arbitration award. Because Plaintiff did not make this argument below, we do not address
it. See McDaniel v. Upsher-Smith Laboratories, Inc.,

893 F.3d 941, 948

 (6th Cir. 2018) (“An argument not raised
before the district court is waived on appeal[.]”) (internal quotation marks and citation omitted).
 No. 18-3886                        McGee v. Armstrong, et al.                          Page 10


       Finally, we review the District Court’s decision granting Defendants’ motion for
summary judgment on Plaintiff’s breach of contract claims.         We review a district court’s
decision granting summary judgment de novo. Baker v. City of Trenton,

936 F.3d 523, 529

 (6th
Cir. 2019) (internal citation omitted). Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is material if it “‘might affect the outcome of the suit under
the governing law.’” Baker,

936 F.3d at 529

 (internal citation omitted). “Once the moving party
has met the initial burden of showing the absence of a genuine dispute of material fact, the
non-moving party must then come forward with specific facts showing that there is a genuine
issue for trial.”

Id.

 (internal quotation marks and citation omitted). “[I]n considering the
evidence in the record, the court must view the evidence in a light most favorable to the party
opposing the motion, giving that party the benefit of all reasonable inferences.”

Id.

 (internal
quotation marks and citation omitted).

       Under Ohio law, to prevail on a breach of contract claim, a plaintiff must show (1) the
terms of the contract; (2) performance by the plaintiff; (3) a breach by the defendant;
(4) damages; and (5) consideration.      Johnson v. U.S. Title Agency, Inc.

91 N.E.3d 76

, 94

2017-Ohio-2852

(internal citation omitted).

Plaintiff claims that Defendants breached the contract by failing “to pay the required
salary in the required amounts and at the required intervals” and failing “to provide the required
military leave pay and provisions as outlined in the employment agreement.”

We first address Plaintiff’s claim regarding his military leave. Plaintiff conceded below
that Defendants adhered to their contractual obligations during Plaintiff’s military leaves in
2008 and 2011. Plaintiff’s 2011–12 employment contract is thus the one at issue. As noted
above, there were two versions of the 2011–12 contract.
No. 18-3886 McGee v. Armstrong, et al. Page 11

The first contract entitled Plaintiff to “thirty-one (31) days of military leave” and
differential pay if Plaintiff’s military leave exceeded that period. When Board personnel
discovered in September 2011 that Plaintiff was overpaid under the leave policy, the Board
modified the 2011–12 contract to read, “[t]he Employee shall be entitled to military leave in
accordance with Ohio law.” Ohio Rev. Code § 5923.05(A) defines “month” as “twenty-two
eight-hour work days or one hundred seventy-six hours[.]”

Plaintiff claims he was entitled to 31 days of military leave per his 2011–12 contract.
Plaintiff then makes bald assertions and legal conclusions that the facts meet the elements of a
breach of contract claim. Plaintiff’s argument is without merit, as the 2011–12 contract sent to
Plaintiff in October 2011 states that Plaintiff was entitled to military leave consistent with Ohio
law, which defines a month as “twenty-two eight-hour work days or one hundred seventy-six
hours[.]” § 5923.05(A). Even though Plaintiff did not sign the 2011–12 contract, we agree with
the District Court that it governed his pay and military leave from October 2011 until his
termination. When Plaintiff received the 2011–12 contract, he was informed that the revisions to
it would “be implemented as outlined in [the] contract” even if he chose “not to sign [it].”
Further, he acquiesced to its terms when he complied with them by sending his military earning
statement to the Board to receive his differential pay. Plaintiff thus fails to show a breach of
contract with respect to military leave.

Plaintiff also argues that the District Court neglected his argument below that Defendants
did not pay his contractually obligated benefits. These benefits include professional time, sick
time, and vacation pay. There is good reason why the District Court did not address this
argument.

As mentioned above, Plaintiff’s complaint alleges that Defendants failed “to pay the
required salary in the required amounts and at the required intervals” and failed “to provide the
required military leave pay and provisions as outlined in the employment agreement.” Plaintiff
never mentioned, until responding to Defendants’ Motion for Summary Judgment, that either of
these allegations claimed Defendants failed to provide him the above benefits. Plaintiff’s
four-paragraph, conclusory affidavit in opposition to Defendants’ Motion for Summary
No. 18-3886 McGee v. Armstrong, et al. Page 12

Judgment does not establish any issue of material fact. The District Court properly granted
summary judgment to Defendants on Plaintiff’s breach of contract claims.

III.

For the reasons above, we AFFRIM.